April 2019 Māori Law Review

Māori interests in natural resource management: 2018 in review

Ana Coculescu, senior associate, and Chelsea Easter, law clerk, from Buddle Findlay review legal developments from 2018 relating to Māori interests in natural resources.

Overview

Part 2 of the Resource Management Act 1991 ("RMA") requires decision-makers to provide for Māori interests and values when reaching decisions under the RMA.  The role of Part 2 in resource consent applications has been the subject of debate in recent years, with the courts moving away from a direct application of Part 2 RMA at this stage of the decision-making process, to a more nuanced approach.

In the 2014 King Salmon decision,[1] the Supreme Court held that Part 2 would only apply directly in plan-making processes under fairly limited circumstances. The courts have since provided further clarification of the application of the Supreme Court's reasoning to decisions on resource consents, with the latest case being the Court of Appeal decision in RJ Davidson Family Trust.[2]

Other cases of note from 2018 have explored Māori participation in RMA decision-making processes, in particular the concept of kaitiakitanga and the role of kaitiaki, other aspects of Part 2 of the RMA, and the requirement for substantive consultation with Māori in relation to proposed developments.  The interaction of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the "EEZ Act") with Māori has also been considered by the Courts during this past year.

This article summarises these cases and provides a brief update on Treaty settlements and developments to watch for during the year ahead.

Discussion

The role of Part 2 RMA principles in granting resource consents

R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316

We discussed in our review of 2017 developments the High Court's decision in RJ Davidson Family Trust v Marlborough District Council [2017] NZHC 52 with respect to the application of Part 2 RMA to decisions on resource consent applications.

In August 2018, the Court of Appeal issued its judgment on appeal and offered further clarification of the issue.

The role of Part 2 has been unclear since 2014, when the Supreme Court held that, in the context of plan changes, Part 2 can only be referred to if there is any "invalidity, incomplete coverage or uncertainty of meaning"[3] in the relevant superior planning document.  The Supreme Court's King Salmon decision ended the "overall judgement" approach for plan-making:  previously, Part 2 had often been considered by decision-makers despite higher-order planning documents, such as the New Zealand Coastal Policy Statement ("NZCPS"), already giving effect to Part 2.  This called into question the previously orthodox approach to decisions on consent applications, expressed to be "subject to Part 2" (section 104), where decision-makers undertook an overall judgment of an application, in light of the relevant effects, plans, and other relevant considerations, against the purpose and principles of the RMA in Part 2.

The effect of King Salmon on resource consent applications was considered further in the RJ Davidson Family Trust Environment Court and High Court decisions.  The case concerned a proposed mussel farm in the Marlborough Sounds.  As the activity was proposed in the coastal environment, the NZCPS was relevant in the assessment of the application.  Both lower courts considered that the reasoning in King Salmon applied to resource consents, rather than being limited to plan changes, and concluded that the guidance provided by the NZCPS and other plans meant that there was no need to consider Part 2 RMA directly.

On appeal, the Court of Appeal held that the Supreme Court in King Salmon had not intended its findings to apply directly to resource consents.  Instead, the Court was satisfied that (at [47]):

the position of the words "subject to Part 2" near the outset and preceding the list of matters to which the consent authority is required to have regard [in section 104], clearly show that a consent authority must have regard to the provisions of pt 2 when it is appropriate to do so.

As such, more flexibility is required than the test from King Salmon provides for plan-making decisions.  The ability to refer to Part 2 will depend on the relevant planning documents, and how competently they were prepared (at [75]):

If a plan has been competently prepared under the Act it may be that in many cases the consent authority will feel assured in taking the view that there is no need to refer to pt 2 because doing so would not add anything to the evaluative exercise.  Absent such assurance, or if in doubt, it will be appropriate and necessary to do so.  That is the implication of the words "subject to Part 2" in s 104(1), the statement of the Act's purpose in s 5, and the mandatory, albeit general, language of ss 6, 7 and 8.

The Court found that the role of Part 2 became more complex once the NZCPS is engaged.  In such cases it is inevitable that King Salmon will apply, but its application will vary.  Reference to Part 2 is not helpful if the application would clearly breach a NZCPS policy.  Part 2 cannot be used to subvert a clear restriction in the NZCPS.  However, Part 2 can be referred to if it is unclear from the NZCPS whether consent should be granted.

The Court of Appeal's decision has important implications for Māori.  There is greater scope for decision-makers to provide for Māori interests and values through direct reference to sections 6(e), 7(a) and 8 in Part 2; much will turn on whether the relevant planning documents have been competently prepared, as well as whether any of the King Salmon exceptions apply.

It is nonetheless still critical for Māori to participate in plan-making processes to ensure that plans protect their interests.

In Panuku Development Auckland Limited v Auckland Council [2018] NZEnvC 179, discussed in more detail below, the Environment Court had an opportunity to consider the application of Part 2 RMA to the issues raised as part of a resource consent application.  The Court considered that, in keeping with the Court of Appeal decision in RJ Davidson Family Trust, it was not necessary to take into account Part 2, as it would not add anything to the evaluative exercise.  The Court considered that the Auckland Unitary Plan had been competently prepared, and Part 2 had been considered as part of the process to prepare that Plan.

Māori cultural values and natural resources

Several cases in 2018 explored the application of Part 2 of the RMA to specific proposals or plans.  Relevantly, Part 2 requires all persons exercising functions and powers under the RMA to:

  • recognise and provide for "the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga" (section 6(e));
  • have particular regard to kaitiakitanga (section 7(a)); and
  • take into account the principles of the Treaty of Waitangi/Te Tiriti o Waitangi (section 8).

The following cases discuss these sections.

Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93

The Tūwharetoa Māori Trust Board sought conditions on resource consents granted for activities relating to the Rotokawa geothermal resource.  The Environment Court held that ownership, as in matters of title, is not determinative for sections 6(e), 7(a) and 8 of the RMA.  The Court reaffirmed that more than one iwi/hapū can have interests in an area; in this case both Ngāti Tahu-Ngāti Whaoa and Ngāti Tūwharetoa were held to be tangata whenua.  When dealing with multiple Māori interests under Part 2 the different identities should be retained in a way that "recognises the separate and distinct identities of iwi and hapū rather than treating all Māori as one entity" (at [129]).

The Court found that Part 2 of the RMA can include metaphysical dimensions of the environment.  This finding was based on the purpose and principles in Part 2, including the recognition of social and cultural well-being in section 5 and the broad definition of environment in section 2.  This finding was important as the ancestral connection of Tūwharetoa to the resource included metaphysical dimensions.

The Court also considered how Ngāti Tūwharetoa should be included in a kaitiaki role.  They clarified that a kaitiaki role is limited (at [111]):

It does not provide for directing management of the resource or the activity, or the way in which the activity is undertaken to ensure compliance with the conditions of consent.

The Court went on to describe the elements it considered would form part of an appropriate kaitiaki role for Ngāti Tūwharetoa, including (at [112]):

(b) Identify values, sites, wāhi tapu, and other taonga of significance to Ngāti Tūwharetoa in relation to the application sites that are not already identified as having cultural significance.

(c) Identify any appropriate changes to the existing monitoring programme to incorporate monitoring of such values, sites, wāhi tapu and other taonga, if any, in consultation with the RJVL and the Council, with the Council's decision being binding.

(f) Provide responses to any such notices or reports received, where they affect the cultural interests of Ngāti Tūwharetoa, on the understanding that sole responsibility for addressing any matters arising will rest with the council and the RJVL.

The appeal was allowed, with consent conditions to be amended as set by the Court.

Self Family Trust v Auckland Council [2018] NZEnvC 49

This was an appeal against Auckland Council's rejection of an independent hearing panel's recommendation to move the rural urban boundary.  Consequently, Crater Hill – an outstanding natural feature in the Auckland Unitary Plan – and Pūkaki Peninsula remained in rural zoning.

The Environment Court found that Te Ākitai Waiohua had a strong mana whenua connection to the landscape.  After assessing the two sites separately, the Court held that together the sites were the last piece of a continuous land/water interface in Te Ākitai's rohe.  The Court acknowledged Te Ākitai's holistic world view.  Further fragmentation of their rohe would be detrimental and would not maintain the mauri of the coastal environment.  The Court therefore upheld the Council's decision to maintain the status quo.

The Court's decision includes a discussion of kaitiakitanga, which is defined in section 2 of the RMA as the "exercise of guardianship by the tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources; and includes the ethic of stewardship".  The Court found that ownership is not required for the exercise of kaitiakitanga, but 'relationship building' is necessary. Importantly the Court clarified how kaitiakitanga should be exercised (at [531]):

it is for the tangata whenua or a Mana Whenua Group… to decide how their kaitiakitanga should be exercised. If Te Ākitai decide they consider the mauri of the area requires maintenance of all the land on Te Kapua Kohuara and Pūkaki Peninsula in its current condition (subject to zoning and existing use privileges the land owners have) rather than 60 per cent ownership of Crater Hill plus open space (and legal access) on Pūkaki Peninsula, it is not for the Auckland council or this court to contradict them… that position is consistent with the holistic character inherent in the Māori world view… recognising Te Ākitai's position is also a matter which s 8 of the RMA requires us to take account of.

On appeal to the High Court in Gock v Auckland Council [2019] NZHC 276, the Court also considered kaitiakitanga and found the Environment Court had not erred in relation to this issue.  The Court held that kaitiaki do not have a veto power but they are in the best position to determine cultural norms.  Kaitiakitanga is wider than simply mana whenua involvement in the decision making process, a position supported by section 2 of the RMA which defines kaitiakitanga broadly.

In this case the Court held that it was clear that Te Ākitai considered that guardianship required maintenance of the status quo.

Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2018] NZEnvC 67

This case concerned the proposed Bay of Plenty Regional Council Environment Plan.  In an interim decision, the Environment Court held that the Motiti Natural Environment Management Area should be protected by rules.  However, there was no sufficient justification to impose controls outside that area.

The Court held that sections 6(e), 7(a) and 8 of the RMA provide clear obligations relating to Māori interests.  In this case the interests were reflected in the NZCPS, Regional Policy Statement and Areas of Significant Cultural Value.  Sections 6(e), 7(a) and 8 may warrant controls in particular areas, such as the marine area in this case.  The Court stated that compliance with controls could be improved initially through encouragement from tangata whenua, particularly kaitiaki.

The Court found that the Areas of Significant Cultural Value fell within the Motiti Natural Environment Management Area.  The cultural values in the Areas of Significant Cultural Value were widely acknowledged.  Although "protection" is not noted in sections 6(e), 7(a) and 8, unlike sections 6(a)-(c), sections 6(e), 7(a) and 8 are not subservient.

Maungaharuru-Tangitū Trust v Hastings District Council [2018] NZEnvC 79

This was an interim decision by the Environment Court on an appeal by Maungaharuru-Tangitū Trust ("MTT").  The appeal concerned eight sites of significance in Hasting District Council's proposed district plan which MTT considered were not adequately dealt with.

The issue was what activity status should be given to activities on wāhi tapu and wāhi taonga sites.  MTT argued for restricted discretionary status unless specified as permitted.  The Council argued that would be unreasonably restrictive on unexceptional farming activities.

Wāhi taonga was defined in the proposed district plan to include wāhi tapu.  However, wāhi tapu, a term used in section 6(e), is not defined in the RMA.  The Court therefore stated its preferred definition of wāhi tapu (at [6]):

It should not, in our understanding, always be regarded as the equivalent of sacred in the religious sense. Nor is it confined to the sites of cemeteries or burial places. Rather, we would generally take it as a description of a place or feature as described in s 338 Te Ture Whenua Māori Act 1993 - … being a place of special significance according to tikanga Māori.

The Court also clarified section 6(e) of the RMA (at [59]):

What is to be recognised and provided for, as a matter of national importance, is … the relationship of Māori and their culture and traditions with their … wāhi tapu and other taonga (emphasis added). What Māori regard as wāhi tapu and other taonga is for them. What the law requires is the recognition of, and provision for, that relationship and neither this Court nor any other RMA decision-maker can dismiss s 6 factors, simply because they may not share the beliefs of Māori, and their traditions and lore.

The Court held that the ridgeline of Te Waka range clearly needed protection.  However, the level of protection and control sought by MTT for the other seven sites was, the Court considered, more than that necessary to provide for their relationship with their wāhi tapu and taonga.  Restricted discretionary activity status would be an unreasonable interference with the reasonable use rights of private land owners.

The Court concluded that both sides needed to be open minded to enable the rights of Māori and the rights of private land owners to be reconciled in a principled and practical way.  The Court recommended mediation between the parties to agree on boundaries for the different activity statuses.

Hokio Trusts v Manawatu-Wanganui Regional Council [2017] NZHC 1355

This was an appeal against an Environment Court decision regarding the lake weed harvesting at Lake Horowhenua.  The basis of the appeal was that the lower court had erred in preferring the evidence of one party over another, and in so erring breached section 8 and, by consequence, the Treaty of Waitangi.

The High Court found that the lower court had carefully considered the evidence presented before it by all parties and preferred the evidence of one party.  The Environment Court analysed in detail the expert evidence presented to it, applying the correct test to the proposed adaptive management approach.  In so doing, the Court had fulfilled its procedural obligation under section 8.

There was no error of law in the Environment Court's decision as the assessment of the evidence presented by all parties is not a matter of law, and the Environment Court is not properly concerned with giving effect to the Treaty of Waitangi, but to taking into account the principles of the Treaty.

Providing for Māori participation in the resource consent process

Mandatory consultation requirements under the RMA are limited:

  • For plan preparation, change and review, the local authority must consult with the tangata whenua of the area who may be affected, through iwi authorities, and with any customary marine title group in the area (schedule 1, clauses 3(1)(d) and (e)). The requirements for consulting with iwi authorities are set out in clause 3B.
  • For resource consent applications there is no obligation on the applicant or the local authority to consult any person. Consultation is optional (section 36A).

Panuku Development Auckland Limited v Auckland Council [2018] NZEnvC 179

In this case the resource consent application for the 2021 America's Cup village and events area in Auckland was referred to the Environment Court for assessment.

The Court repeated its view that the consultation process should be undertaken in earnest, rather than as a formality.  The participation of affected persons is a "cornerstone of the resource management process" (at [396]).  The Court went on to acknowledge that the RMA does not provide for an applicant to consult with stakeholders prior to lodging an application; however consultation was important in practice, despite there being no statutory requirement (at [397]):

it is difficult to see how relevant issues arising from an application, particularly those relating to the matters that must be addressed in terms of Part 2 of the Act, can properly be assessed where there has been no or inadequate consultation.

The applicant and a number of iwi acknowledged that consultation with the iwi had not taken place with respect to the application that the Court was asked to consider.  The Court was told that the applicant had apologised to the representatives of the iwi, and the apology had been accepted, allowing for the parties to engage in more meaningful consultation, which led to agreed conditions.

The future participation of iwi as part of the process following grant of the resource consents was to take the form of a special forum, designed for this particular project.  The Court accepted the parties' proposed resolution of this issue.

In Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, discussed earlier, the Environment Court also considered consultation.  Inadequate consultation had occurred in the case but the blame could not be apportioned to any one party.  The Court reiterated that consultation is not mandatory for resource consents but it can "assist greatly in ensuring effective and enduring resource management outcomes" (at [89]).

The EEZ Act and Māori interests

Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217

This was a High Court appeal of an Environmental Protection Authority (“EPA”) decision.  The Environmental Protection Authority had granted marine consents and marine discharge consents to Trans-Tasman Resources Limited for their iron ore extraction and processing activities on the seabed off the South Taranaki Bight.  As the activity was occurring beyond the coastal marine area the EEZ Act was the relevant statute, rather than the RMA.

The Court held that a cultural impact assessment is not mandatory under the EEZ Act, but is good practice.  However, if the local iwi are unwilling to participate, the decision making committee can rely on a cultural assessment from outside sources.  The decision-making committee was entitled to rely on advice from an expert witness, Tahu Potiki, and Ngāti Kaihautū (an advisory body of the EPA) as the local iwi would not participate.

General Māori interests must be taken into account by the decision-making committee under section 59(2)(m) but there is no obligation for them to be adopted or expressly incorporated into the decision.  The Court found the decision-making committee had clearly considered general Māori interests such as Treaty settlements and customary uses.  However, customary marine title claims that are not yet recognised are not an "existing interest" under section 59(2), and do not have to be taken into account when considering effects.  The decision-making committee was entitled to exclude unrecognised claims from their consideration of existing interests.

Importantly, the Court held that the decision-making committee did not have to consider separately the Treaty of Waitangi/Te Tiriti o Waitangi or the United Nations Declaration on the Rights of Indigenous Peoples.  Section 12 of the EEZ Act expressly explains how the EEZ Act recognises the Crown's responsibility to give effect to Treaty principles, including how Māori interests are to be recognised.  Therefore, the EEZ itself defines how the Treaty is to be incorporated and the United Nations Declaration on the Rights of Indigenous Peoples is subsumed by section 12.

Treaty settlement milestones

In 2018 there were significant steps forward in a number of Treaty settlements.  Deeds of settlement were signed or initialled between the Crown and Ngāti Rangi, Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua, Marutūāhu Collective, Te Patukirikiri, and Ngāti Hinerangi.  Agreements in principle were also reached between the Crown and Te Korowai o Wainuiārua and Ngāti Rangitihi.

The following Treaty settlement legislation came into force:

  • Heretaunga Tamatea Claims Settlement Act 2018
  • Ngāi Tai ki Tāmaki Claims Settlement Act 2018
  • Ngāti Tamaoho Claims Settlement Act 2018
  • Iwi and Hapū of Te Rohe o Te Wairoa Claims Settlement Act 2018
  • Ngāti Tūwharetoa Claims Settlement Act 2018

Developments to watch for in 2019

  • Application of the Court of Appeal's decision in RJ Davidson Trust
  • Report on Stage 2 of the National Fresh Water and Geothermal Resources Inquiry (WAI 2358)
  • More Treaty settlements entering or progressing through legislative stages, such as the Ngāti Rangi Claims Settlement Bill

Notes

[1] Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38.

[2] R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316.

[3] Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38 at [90].

Follow the links below for previous reviews of Māori interests in natural resource management (2013) March Māori LR 9-13(2014) March  Māori LR(2015) March Māori LR(2016) April Māori LR; (2017) April Māori LR; and (2018) March Māori LR.